Thoughts on recent Ninth Circuit and California appellate cases from Professor Shaun Martin at the University of San Diego School of Law.

Friday, February 21, 2014

In Re Aarica S. (Cal. Ct. App. - Feb. 21, 2014)

After reading this case, it's hard for me to understand how prostitutes can ever get busted. At least if they're smart and "stick to the playbook" religiously.

Prostitutes -- like drug dealers -- constantly ask their customers (upon introduction) "Are you a cop?" We all know that doesn't work. Undercover officers can lie. So why criminals persist in asking that question is beyond me. Perhaps they don't know the relevant doctrine. They clearly should read more blawgs.

But what prostitutes do know is that the police, including undercover police, can't "have their cake and eat it too." Which, in this context, means that the police aren't permitted to commit sexual acts with prostitutes, which includes (though is certainly not limited to) either touching the prostitute sexually or having the prostitute touch the officer sexually.

So what smart prostitutes do when they're picked up off the street -- including the 17-year old here -- before "sealing the deal" is to touch the would-be customers' genitals. The officer here was able to get around this approach by blocking the streetwalker's hand when she made her move. But the prostitute, undeterred, then told the would-be-john-slash-maybe-a-cop to touch her. Which is a pretty good way to figure out if someone's undercover. A "normal" guy looking to buy a sex act will presumably have no problem taking a free promo. Whereas a cop knows that's not allowed. So it's a pretty good litmus test of whether you should feel comfortable sealing the prostitutorial deal. (That's probably not a word, but I like it anyway.)

The officer here smartly circumvented this latest test by briefly touching the prostitute on the knee. An act that's apparently permitted by the rules and that the prostitute erroneously concluded meant that her customer was not a cop. So good police work. By contrast, bad job by the prostitute.

But even though everything "worked out" here, I wonder about the underlying "rules". I presume there are plenty of smart prostitutes and/or pimps out there. Surely some of them know to insist upon actual intimate touching before sealing the deal. And if some of them know, why doesn't that knowledge get diffused in the relevant communities fairly quickly? Or why doesn't the "cream rise to the top" and the non-busted prostitutes have a competitive advantage over busted ones, leading (over time) to uniformity of knowledge? Why doesn't the market/"invisible hand" doesn't seem to work here?

I have a similar reaction to drug dealers. If I was looking to sell a kilo of coke, for example, I'd make darn sure the guy wasn't a cop by forcing him to do a line or two first. If the guy refused, no deal. No exceptions. Sure, there's still always the risk that he's an informant, or is a true criminal who will nonetheless later roll over on you. But are you really that hard up for a buyer that you're going to take what seems to me to be a pretty high risk that a coke buyer who doesn't do coke is actually a cop?

I'm certain that creative police officers will invent ways to get out of such a "trap". Like the cop here who blocked the hand and touched the knee. Maybe they'll simply do whatever's required by the bad guy and then thereafter commit perjury. Or maybe they'll be even more creative; I've heard tell of one undercover officer who refused to consume a portion of the relevant drugs by saying that she was pregnant. Smart.

But if the dealer or prostitute or whatever internally imposes a uniform rule that s/he unflaggingly follows in order to screen out undercover cops, it seems like that'd work pretty well.

So I wonder why they don't. (Perhaps, of course, they do. And those people simply don't get busted as much, which means I don't read about them.)

Regardless, it's a neat little business. Where each side has it's own "rules" as well as responsive ones in light of the other sides'.